Attorneys warn against lower DUI threshold

You go to a restaurant and have two beers with dinner. On the drive home, you get pulled over by police.

Your blood alcohol level is 0.05. You get arrested on a DUI charge and spend the night in jail.

Local DUI attorneys said that scenario could happen if a federal proposal is enacted to lower the legal limit for driving under the influence of alcohol from 0.08 to 0.05.

“It runs the risk of criminalizing behavior that’s not criminal, like social drinking,” said Anthony Rickman, a lawyer in the Tampa firm of Taracks, Gomez & Rickman.

“Any odor of alcohol will now be probable cause. One of the effects of lowering the legal limit is that it lowers the threshold of an officer arresting you.”

The recommendation for the lower limit comes from the National Transportation Safety Board, an independent federal agency tasked by Congress with investigating airline, highway and railroad safety.

The board based its proposal on a study which concluded that “by 0.05 BAC, most drivers experience decline in both cognitive and visual functions, which significantly increases the risk of a serious crash.”

Most countries in South America, Europe and Asia have a legal limit of 0.05, according to the study conducted by the safety board.

Safety advocates say drunk drivers kill 10,000 people a year.

“Alcohol-impaired crashes are not accidents,” said Deborah Hersman, chairwoman of the safety board. “They are crimes. They can — and should — be prevented. The tools exist. What is needed is the will.”

The NTSB’s recommendations historically carry a lot of weight, but the proposal’s passage is far from certain.

President Barack Obama’s administration is not backing the recommendation, and officials with the National Highway Traffic Safety Administration said it doesn’t have the data to support the proposal.

Even Mothers Against Drunk Driving isn’t endorsing it.

Officials with MADD, one of the nation’s largest advocates against impaired driving, said the organization would rather focus on its own initiatives to prevent and lessen traffic deaths.

“The focus of our advocacy remains on the continued implementation of our Campaign to Eliminate Drunk Driving,” officials said in a statement.

MADD’s campaign focuses on three elements: ignition locks for all convicted DUI offenders, increased visibility of law enforcement and the development of technology to prevent a drunk driver from operating a vehicle.

Jeff Keel, a Tampa DUI attorney, said he’s not surprised by resistance to the safety board’s proposal.

“I think we’re flirting with 0.08 being the bottom of where it should be,” he said. “I find it to be far too restrictive to a society that has bars and restaurants that serve alcohol. You’re getting into a very low alcohol threshold.”

Keel said that if a 180-pound man has two drinks in an hour, that person’s blood alcohol level will be at about 0.05. One more drink would push it to 0.06. In Keel’s equation, one drink is a 12-ounce beer or one and a half shots of 80-proof liquor.

Under current state law, a person can be arrested if his or her blood alcohol level is 0.05 and there’s other evidence the person is impaired, Keel said.

Such evidence includes a police officer seeing a person driving erratically, a motorist suspected of DUI who is also involved in a crash, slurred speech or failing a voluntary field sobriety test, Keel said.

Rickman said lowering the blood alcohol limit could cause a logjam of cases at the courthouse.

“It’ll create a plethora of DUI cases that we wouldn’t see otherwise,” he said.

Congress passed a law in 2000 adopting a blood alcohol level of 0.08 as the national limit for impaired driving. The legal limit before the law was 0.10.

States that didn’t comply by 2003 had 2 percent of certain highway construction grants withheld.

Rickman said it is not inconceivable that a bill for a 0.05 legal limit could be drafted and voted on by lawmakers in the future.

“I don’t think that’s far-fetched at all,” he said. “Years ago, they said it was impossible to go from 0.10 to 0.08. So it could happen.”